Under Department of Labor Relations/Commonwealth Employment Relations Board precedent a public employer has the nonbargainable prerogative to require employees to undergo fitness for duty examinations. Until recently, however, it was an open question whether the method and means by which these examinations are conducted is a mandatory subject of bargaining. On December 30, 2021, the Appeals Court resolved that question when it affirmed the decision of the CERB in City of Newton v. Commonwealth Employment Relations Board, holding that the employer was required to engage in bargaining over the criteria and procedures for fitness for duty examinations.

The facts giving rise to the dispute first arose in 2016, when the police chief ordered a captain to undergo physical and psychological “fitness for duty” examinations. The order followed a recent uptick in the number of personal days the employee had taken following deaths in his family and a personal injury not related to his work. In response to the chief’s directive the superior officers demanded that the city bargain over (1) the selection of the psychological examiner; (2) the information to be transmitted to the examiner; (3) the testing protocol to be used; and (4) what results were to be generated and to whom the results were to be communicated. When the city refused, the union filed a charge of prohibited practice and ultimately the DLR hearing officer and then the CERB found a violation, following which the city appealed.

The Appeals Court affirmed. Noting that “the decision to order a fitness for duty examination is within the city’s managerial prerogative and is not subject to mandatory bargaining”, it rejected the city’s several arguments regarding the manner in which the examination is conducted. First the city asserted that a bargaining requirement would “unduly impinge on its freedom to perform its public functions.” The court disagreed, ruling that the city’s interest in public safety is not undercut by the requirement that it engage in impact bargaining over the procedures and criteria for examinations. The court added that the city and union had previously engaged in successful negotiations over a drug and alcohol abuse policy, which included standards for initiating testing and testing administration. Next, the city argued that it was insulated from its duty to bargain based on the Civil Service Law, G.L. chapter 31. The court again disagreed, finding no conflict between the two laws and, therefore, that the city’s obligation to negotiate prevailed. Finally, the city argued that the union waived its right to bargain based on certain provisions in the parties’ contract, including the “management rights” clause. Again, the court rejected this argument as well because the agreement’s language failed to show a “clear and unmistakable waiver” of bargaining over the manner and means of determining fitness for duty examinations.

The court summarized by stating the “fact that mere completion of the examinations did not result in [the employee]’s reinstatement, and that he remained suspended until he had met whatever fitness criteria applied to the examinations, makes the point that the ‘methods and means’ of the decision were critical to the terms of [his] continued employment.” The court emphasized the “distinction between ordering an examination and the procedures for implementation, e.g., choosing an examiner, and the method and means by which the examination will be carried out”.

Public employers should keep in mind that while the decision to have an employee undergo a fitness for duty examination is the employers to make, how the examination will be implemented must be negotiated with the relevant union. Because in a given circumstance it may be difficult to clearly separate the two concepts, an employer that is uncertain about its obligations should consult with its counsel.

This update is provided for informational purposes only and should not be considered legal advice.

On December 17, 2021, the Massachusetts Supreme Judicial Court issued its decision in Meehan v. Medical Information Technology, Inc., reversing the dismissal of the Superior Court. The issue before the court was whether an employer can terminate an at-will employee “simply for exercising the right to file a rebuttal to be included in his personnel file” as is permitted under the Massachusetts Personnel Records Act.  Answering in the negative, the court held that such a termination would violate the public policy exception to at-will employment.

Meehan had worked as a sales representative for Medical Information Technology, Inc. (“Meditech”) since 2010. In 2017, Meditech transferred Meehan to a newly created sales specialist position. The new position had significantly different job responsibilities and differed in compensation structure. While employed in this position, Meehan was placed on a performance improvement plan. In response to his placement on the performance improvement plan, Meehan submitted a lengthy rebuttal statement. Members of Meditech’s management team met that same day to discuss Meehan’s rebuttal and decided to terminate him immediately.

Generally, an at-will employee may be terminated for any non-discriminatory reason or no reason at all. However, Massachusetts courts have recognized a narrow exception to this at-will rule where the discharge violates public policy. The public policy exception has been applied in circumstances where an employee was discharged for asserting a legally guaranteed right. A basis for finding such a right “can easily be found when the Legislature has expressed a policy position concerning the rights of employees and an employer discharges an at-will employee in violation of that established right, unless no common law rule is needed because the Legislature has provided a statutory remedy.” Here, the court found that the Personnel Records Act expressed a clear legislative position, protecting an employee’s right to submit a rebuttal statement. Specifically, M.G.L. c. 149, § 52C provides that “if there is a disagreement with any information contained in a personnel record . . . the employee may submit a written statement explaining the employee’s position which shall thereupon be contained [in the personnel record.]”  The Court found that because the Act is silent on the issue of termination or retaliation for exercising the right itself, the common-law wrongful discharge action is the appropriate remedy. Thus, the Superior Court’s dismissal of the action was inappropriate.

In so holding, the Court expressly rejected the contention that recognizing the right of rebuttal would extend just cause protection to at-will employees. Indeed, rebuttal statements do not provide any additional protections to at-will employees; rather, they merely memorialize the employee’s position regarding an issue in dispute.

Moving forward, the holding in Meehan makes clear that an employer retains the right to terminate an employee for any non-discriminatory reason or no reason.  However, an employer cannot terminate an at-will employee for exercising the employee’s right to file a rebuttal statement in the employee’s personnel file pursuant to M.G.L. chapter 149 §52C.

This update is provided for informational purposes only and should not be considered legal advice.

On November 16, 2021, the Occupational Safety and Health Administration (“OSHA”) announced that it would suspend the Emergency Temporary Standard (“ETS”) on COVID-19 Vaccination and Testing for the time being.  Our office published an advisory on November 5, 2021 addressing employer obligations to comply with the ETS.

The ETS went into effect on November 5, 2021.  However, on November 12^th, the Fifth Circuit Court of Appeals granted a motion to stay enforcement of the ETS.  In response, OSHA has resolved to suspend all activities related to implementation and enforcement of the ETS.  Our office will continue to monitor the status of the ETS and employer obligations response to the ETS.

If you have any questions regarding the content of this update, or any other questions regarding labor and employment law generally, please contact us.

This update is provided for informational purposes only and should not be considered legal advice.

On November 4, 2021, the Occupational Safety and Health Administration (OSHA) announced an Emergency Temporary Standard (ETS) on COVID-19 Vaccination and Testing.  The ETS takes effect upon publication in the Federal Register, November 5, 2021.  Covered employers have thirty (30) days to come into compliance with most aspects of the ETS, including vaccine mandates, but have sixty (60) days to comply with testing requirements.

The ETS Applies to Employers With 100 or More Employees:

The ETS covers employers with 100 or more employees, firm or company-wide.  OSHA expects this will cover approximately two-thirds of the nation’s private sector workforce.  Exempted from the ETS are workplaces covered by the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and subcontractors and workplaces where any employee provides healthcare services or healthcare support services and is subject to the requirements of the Healthcare ETS (§1910.502).

The ETS will also apply to public sector employees in states with OSHA State Plans.  OSHA’s Fact Sheet indicates public employers in states without OSHA State Plans will not be covered by the ETS.  The Massachusetts Department of Labor Standards (DLS), however, has not yet determined whether the ETS will apply to Massachusetts public sector employers.  Although Massachusetts does not have a State Plan, as many of you are aware, in 2018 the Massachusetts legislature passed An Act Relative to Standards of Employee Safety, which required public employers “provide public employees at least the level of protection provided under the federal Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et. seq., including standards and provisions of the general duty clause contained in 29 U.S.C. 654.”  Given the intent of the legislature, the DLS may determine it is appropriate to enforce the ETS here in Massachusetts with public sector employees.

Testing Requirements:

The ETS requires covered employers to develop, implement, and enforce a mandatory COVID-19 vaccination policy, unless the employer adopts a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work.  Regardless of which option they choose, employers will be required to determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees, and maintain records and a roster of each employee’s vaccination status.  At this time boosters are not required to be considered “fully vaccinated.”

Employer Option to Permit Testing In Lieu of Vaccination:

Employers who permit testing as an alternative to vaccination, must require employees who are not fully vaccinated to be tested for COVID-19 at least weekly.  And employees who are not fully vaccinated must wear a face covering when indoors or in a vehicle with another person for work purposes.  There is an exception for fully remote employees and/or those who only come into the workplace on a limited basis.  Those individuals must only be tested within seven (7) days prior to coming to the office.  Those who test positive for COVID-19 are excepted from testing for 90 days to avoid false positives but are required to continue to wear a face mask.

Employer Obligations to Support Employee Compliance:

• Leave – employers must provide paid time off to employees to get vaccinated and to recover from any side effects from the vaccination.
• Testing – employers are not required to pay for employees to be tested. (Employers may, however, reach agreements with unions that provide for employer paid/free testing).  Employers can offer on-site testing and can also use pool testing.
• Employee Notice – employers must require employees to notify them if they test positive for COVID-19. Once notified, employers have an obligation to remove that employee from the workplace, regardless of vaccination status, and prohibit the employee from returning until certain criteria are met.

In releasing this ETS, OSHA made clear that it will continue to monitor COVID-19 trends and may modify and change the ETS as necessary.  In addition, although it takes effect immediately, the ETS is considered a proposal and OSHA seeks comments before finalizing.

The ETS can be found here: https://public-inspection.federalregister.gov/2021-23643.pdf and a FAQ issued by OSHA can be found here: https://www.osha.gov/coronavirus/ets2/faqs.

If you have any questions regarding the content of this update, or any other questions regarding labor and employment law generally, please contact us.

This update is provided for informational purposes only and should not be considered legal advice.